League of Women Voters of Mich. v. Benson

• Citation: 373 F.Supp.3d 867
• Decision Date: 25 April 2019
• Docket Number: No. 2:17-cv-14148,2:17-cv-14148
• Parties: LEAGUE OF WOMEN VOTERS OF MICHIGAN, et al., Plaintiffs, v. Jocelyn BENSON, in her official capacity as Michigan Secretary of State, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

373 F.Supp.3d 867

LEAGUE OF WOMEN VOTERS OF MICHIGAN, et al., Plaintiffs,
v.
Jocelyn BENSON, in her official capacity as Michigan Secretary of State, et al., Defendants.

No. 2:17-cv-14148

United States District Court, E.D. Michigan, Southern Division.

Signed April 25, 2019

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Joseph H. Yeager, Harmony Mappes, Kevin Toner, Jeffrey P. Justman, Daniel R. Kelley, Matthew R. Kinsman, and Michael Jaeger, Faegre Baker Daniels LLP, Mark C. Brewer, Goodman Acker, Southfield MI, for Plaintiffs

Michael J. Hodge, Scott R. Eldridge, Miller, Canfield, Ryan M. Shannon, Dickinson Wright, PLLC, Peter H. Ellsworth, Robert P. Young, Jr., Lansing, MI, Erika L. Giroux, Miller, Canfield, Paddock & Stone, Brian Shekell, Clark Hill PLC, David Cessante, Detroit, MI, Jason B. Torchinsky, Phillip Michael Gordon, Shawn Toomey Sheehy, Holtzman Vogel Josefiak Torchinsky, PLLC, Warrenton, VA, Kevin A. Fanning, Peter B. Kupelian, Clark Hill PLC, Birmingham, MI, Charles R. Spies, Clark Hill PLC, Michael A. Carvin, Washington, DC, for Defendants

BEFORE: CLAY, Circuit Judge; HOOD and QUIST, District Judges.

OPINION AND ORDER

CLAY, Circuit Judge

The League of Women Voters of Michigan ("League"), numerous League members ("League Plaintiffs"), and several Democratic voters ("Individual Plaintiffs") bring suit against Jocelyn Benson, the Michigan Secretary of State in her official capacity, under 42 U.S.C. §§ 1983 and 1988, alleging that Michigan's current legislative apportionment plan (the "Enacted Plan"), which the state legislature implemented as Michigan Public Acts 128 and 129 of 2011, violates Plaintiffs' Fourteenth Amendment equal protection rights and First Amendment free speech and association rights by deliberately discriminating against Democratic voters.¹ (See Compl., ECF No. 1.)

After Plaintiffs filed suit, several parties moved to intervene. Ultimately, intervention was granted to several of the Republican members of Michigan's United States congressional delegation and two Republican state house members (together "Congressional and State House Intervenors") (see ECF Nos. 103, 157) and to numerous Republican state senators and the Michigan

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Senate as a whole (together "Senate Intervenors") (see ECF No. 237 ).²

Plaintiffs initially sought to invalidate the entire Enacted Plan. (See Compl.) However, they have since narrowed their claims to 34 congressional, House, and Senate districts (the "Challenged Districts").³

The Court held a trial on Plaintiffs' claims. (See Trial Trs., ECF Nos. 248, 249, 250.) In addition to presenting witnesses at trial, the parties submitted hundreds of exhibits and deposition testimony from numerous witnesses in lieu of in-person testimony, pursuant to the Court's order, which reflected the parties' stipulation about the presentation and admissibility of evidence. (See Order Re: Parties' Partial Stipulations and Report, ECF No. 234.) The parties also filed post-trial briefs, including proposed findings of fact and proposed conclusions of law.⁴ (See ECF Nos. 254, 255, 256, 257, 258.) The Court has carefully considered all the evidence.

Today, this Court joins the growing chorus of federal courts that have, in recent years, held that partisan gerrymandering is unconstitutional. We find that the Enacted Plan violates Plaintiffs' First and Fourteenth Amendment rights because it deliberately dilutes the power of their votes by placing them in districts that were intentionally drawn to ensure a particular partisan outcome in each district. See Gill v. Whitford , ––– U.S. ––––, 138 S.Ct. 1916, 1929–31, 201 L.Ed.2d 313 (2018). The Enacted Plan also injures Plaintiffs' First Amendment right to association by discriminating against them and their political party and subjecting them to "disfavored treatment by reason of their views." Vieth v. Jubelirer , 541 U.S. 267, 314, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (Kennedy, J., concurring in the judgment). Because we find that these constitutional violations will reoccur if future elections are held under the Enacted Plan, we HEREBY ENJOIN the use of the Challenged Districts in any future election.

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I. INTRODUCTION

The term "partisan gerrymandering" describes "the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power." Ariz. State Leg. v. Ariz. Indep. Redistricting Comm'n , ––– U.S. ––––, 135 S.Ct. 2652, 2658, 192 L.Ed.2d 704 (2015). "By definition, partisan gerrymandering amounts to an effort to dictate electoral outcomes by favoring candidates of one party and disfavoring candidates of another." Common Cause v. Rucho , 318 F.Supp.3d 777, 800 (M.D.N.C. 2018) (three-judge panel) (citing U.S. Term Limits, Inc. v. Thornton , 514 U.S. 779, 833–34, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995) ). Partisan gerrymandering thus violates the core purpose of legislative apportionment—providing "fair and effective representation for all citizens." Reynolds v. Sims , 377 U.S. 533, 565, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).

The Supreme Court has acknowledged that partisan gerrymandering is "incompatible ... with democratic principles." Ariz. State Leg. , 135 S.Ct. at 2658 (quoting Vieth , 541 U.S. at 292, 124 S.Ct. 1769 (plurality opinion) ). It violates "the core principle of republican government ... that the voters should choose their representatives, not the other way around." Id. at 2652 (internal quotation marks and citation omitted). Lower federal courts have also noted that partisan gerrymandering diminishes our democracy, aptly describing it as a "noxious" practice that "has no place in a representative democracy[,]" Shapiro v. McManus , 203 F.Supp.3d 579, 600 (D. Md. 2016) (Bredar, J. dissenting) (three-judge panel) (internal citation omitted); a "cancerous" problem that "undermin[es] the fundamental tenets of our form of democracy," Benisek v. Lamone , 266 F.Supp.3d 799, 818 (D. Md. 2017) (three-judge panel), aff'd , ––– U.S. ––––, 138 S.Ct. 1942, 201 L.Ed.2d 398 (2018) ; and a phenomenon "widely considered to be repugnant to representative democracy." Benisek v. Lamone , 348 F.Supp.3d 493, 511 (D. Md. 2018) (three-judge panel).

Drawing district lines is an inherently political process. See Gaffney v. Cummings , 412 U.S. 735, 753, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973) ("The reality is that districting inevitably has and is intended to have substantial political consequences.") And "because the Constitution commits district apportionment to political departments [and] it is quintessentially a political process ... courts cannot invalidate a redistricting map merely because its drafters took political considerations into account in some manner." Benisek , 348 F.Supp.3d at 511 (citing Gaffney , 412 U.S. at 752–53, 93 S.Ct. 2321 ). But, as a recent three-judge panel explained,

the political nature of redistricting does not "immunize state congressional apportionment laws which debase a citizen's right to vote from the power of courts to protect the constitutional rights of individuals from legislative destruction, a power recognized at least since our decision in Marbury v. Madison [1 Cranch 137, 2 L.Ed. 60 (1803) ].... The right to vote is too important in our free society to be stripped of judicial protection."

Id. (quoting Wesberry v. Sanders , 376 U.S. 1, 6–7, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) (citations omitted) ). As Justice Kagan recently observed, "the need for judicial review is at its most urgent in [partisan gerrymandering] cases" because "politicians' incentives conflict with voters' interests, leaving citizens without any political remedy for their constitutional harms." Gill , 138 S.Ct. at 1941 (Kagan, J., concurring). Partisan gerrymandering "enables politicians to entrench themselves in power

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against the people's will. And only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches." Id. at 1935 (Kagan, J, concurring).

Federal courts must not abdicate their responsibility to protect American voters from this unconstitutional and pernicious practice that undermines our democracy. Federal courts' failure to protect marginalized voters' constitutional rights will only increase the citizenry's growing disenchantment with, and disillusionment in, our democracy, further weaken our democratic institutions, and threaten the credibility of the judicial branch. See Vieth , 541 U.S. at 310, 124 S.Ct. 1769 (predicting that "[a] determination by the Court to deny all hopes of intervention" in partisan gerrymandering cases "could erode confidence in the courts"). Judges—and justices—must act in accordance with their obligation to vindicate the constitutional rights of those harmed by partisan gerrymandering.

II. FACTS

A. The Enacted Plan

The Michigan Constitution provides that the Michigan legislature shall redraw Michigan's congressional and state legislative districts by November 1, 2001, and every ten years thereafter. See Mich. Comp. Laws §§ 3.62, 4.261. This directive...